Keeping the Covenant on the Federal Courts

February 14, 1994

By Carl Tobias. Carl Tobiasa professor of law at the University of Montana, frequently writes on judicial selection.

OBSERVERS of American politics, from Jerry Brown to Ross Perot, have criticized President Clinton for breaking many promises. However, Federal judicial selection is one critical area in which the chief executive has clearly honored his commitments.

In discharging the constitutional duty to appoint judges, the administration has carefully implemented a new covenant with the American people by increasing gender, racial, and political balance on the federal bench.

When Mr. Clinton was campaigning, he contended that the court appointments of Presidents Reagan and Bush significantly reduced the diversity that President Carter had strongly promoted. Candidate Clinton pledged to rectify that situation. Since the election, he has fulfilled his promise by naming outstanding judges who reflect society's diverse composition. As the president begins his second year in office, his administration's record of choosing judges should be evaluated to ascertain how he has kept his covenant.

Clinton appointed and nominated unprecedented numbers and percentages of women and minorities, although the Senate has yet to confirm two-fifths of his nominees. He named 11 women out of 28 judges (39 percent) and seven minorities out of 28 judges (25 percent). He nominated 18 female lawyers out of 48 (37 percent) and 13 minority attorneys out of 48 (27 percent). These figures eclipse Mr. Reagan's record and substantially surpass those of Mr. Bush and Mr. Carter.

All of Clinton's appointees and nominees apparently have excellent qualifications. They seem to be highly intelligent, industrious, quite independent, and to possess great integrity. Quite a few have earned respect for their effective performance as federal or state court judges.

United States Supreme Court Justice Ruth Bader Ginsburg is illustrative. Her litigation of landmark women's rights cases prompted some observers to analogize her career to that of Justice Thurgood Marshall. For 13 years she served with distinction on the DC Circuit, the country's second most important court. Professor Ginsburg enjoyed a reputation as a clear thinker and a consensus-builder on a very contentious court, which decides many cases involving complex issues of science, economics, and public policy that affect millions of Americans.

Clinton also elevated to the Second Circuit Pierre Leval, who was widely acclaimed as one of the preeminent federal district judges. Moreover, he appointed to the Sixth Circuit Justice Martha Daughtrey, a highly-regarded member of the Tennessee state bench for over a decade.

The administration has implemented efficacious selection processes and instituted special efforts to find and nominate excellent women and minorities. Moreover, the president and high-ranking personnel have proclaimed that the appointment of distinguished, diverse judges is a top administration priority, specifically urging senators to forward the names of female and minority attorneys for nomination.

Clinton's success is even more striking given the obstacles he faced. Lengthy Republican control of the executive branch meant that the administration lacked individuals with applicable governing experience. Justice Byron White's decision to resign two months after the inauguration also consumed many weeks that could have been spent nominating circuit and district court judges.

The White House should continue to name very able female and minority judges. They could enhance their colleagues' sensitivity to complex public policy issues, such as those involving the death penalty and abortion, that federal courts must address.

A number of female and minority judges may better apprehend specific difficulties, such as securing and maintaining employment and experiencing discrimination, which many women and minorities encounter. The appointment of additional female and minority judges could reduce gender and racial bias in the federal court system. Evidence also suggests that the public has greater confidence in a bench whose composition more closely resembles that of society. Numerous women and minorities, including Justices Sandra Day O'Connor, Ginsburg, and Marshall, have been outstanding jurists.

Another reason for appointing more female and minority judges is the need to rectify the lack of gender, racial, and political diversity in the current judiciary, 60 percent of which Reagan and Bush named. Fewer than two percent of the Reagan administration's appointees were African-Americans, while Bush named a lone Asian-American and only nine Latinos. The Republican presidents apparently chose many judges, such as Justice Clarence Thomas, Judge Robert Bork, and Judge Daniel Manion, because they were conservative.

The dearth of women and minorities appointed is even more compelling because Reagan and Bush had much larger, more experienced pools of female and minority attorneys from which to select than did Carter. The number of female lawyers rose from 62,000 in 1980 to 140,000 in 1988, while the number of African-American, Latino, and Asian-American practitioners increased from 23,000 in 1980 to 51,000 in 1989.

Many of the women and minorities have been actively involved in diverse forms of challenging legal work at the Justice Department, public interest groups, and large law firms. The failure to appoint more of these attorneys deprives the nation of their talents and raises fundamental issues of fairness.

Clinton and his advisers should examine ways of enhancing efforts to name greater numbers and percentages of highly competent female and minority judges. The president could reiterate in an important public forum his strong commitment to appointing additional female and minority judges. Administration officials should also seek names from less traditional sources, such as women's groups and minority political organizations.

Clinton compiled a fine record of judicial selection during his first year in office. If the administration redoubles its efforts, it can name even more excellent female and minority judges. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.

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